Fraudulent-transfer law is a crucial component of debtor/creditor relationships. In the bankruptcy context, fraudulent intent is an essential element for both a trustee’s clawback power through § 548(a)(1)(A) of the Bankruptcy Code[1] and for denial of a discharge through § 727(a)(2).
The Bankruptcy Code revisions in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 included a requirement that a court appoint a consumer privacy ombudsman (CPO) in some cases involving the sale of personally identifiable information. This requirement has now been in effect for over 10 years, and the time is ripe to assess the CPO’s role in bankruptcy cases.
This article outlines the legislative framework behind and briefly describes the process of a bankruptcy proceeding,[1] the Canadian equivalent of a chapter 7 filing in the U.S.
Justice Antonin Scalia's death this past February left a vacancy on the Supreme Court and set off a partisan battle over the confirmation of his successor.
If a debtor has received a fraudulent transfer, he or she may also have incurred a nondischargeable debt. According to a recent ruling by the Supreme Court, the discharge exception for “actual fraud” is now broad enough to include the liability imposed, if any, on the recipient of fraudulent transfer. The Court resolved a circuit split in Husky International Electronics Inc. v.
The basic elements and defenses for fraudulent-transfer claims have a certain elegant balance when combined (see the attached table below). For constructively fraudulent transfers by an insolvent transferor, a defendant who provides reasonably equivalent value will not be held liable.
A debtor’s bankruptcy schedules of assets and liabilities (Schedules) and statement of financial affairs (SOFA) are filed early in a chapter 11 case and are supposed to contain an accurate and complete listing of all assets and liabilities, signed by a responsible party under oath.
The “automatic stay” is one of the most fundamental debtor protections under the Bankruptcy Code. On rare occasions, courts have used their equitable powers under Bankruptcy Code § 105 to enjoin actions against nondebtors, usually arising from the same litigation plaguing the debtor. In late 2015, the Seventh Circuit Court of Appeals decided Caesars Entertainment Operating Co. v.
[1]The in pari delicto defense is a state law-based equitable defense designed to prevent a plaintiff from pursuing damages resulting from wrongful conduct in which the plaintiff itself is complicit.
In a March 16, 2016, opinion, the U.S.
